State v. Ransom

• Decision Date: 31 March 1983
• Docket Number: No. 54636,54636
• Citation: State v. Ransom, 661 P.2d 392, 233 Kan. 185 (Kan. 1983)
• Parties: STATE of Kansas, Appellant, v. Peter H. RANSOM, Appellee.
• Court: Kansas Supreme Court

Page 392

661 P.2d 392

233 Kan. 185

STATE of Kansas, Appellant, v.Peter H. RANSOM, Appellee.

No. 54636.

Supreme Court of Kansas.

March 31, 1983.

Syllabus by the Court

Where the dismissal of criminal charges results from the State's own motion and is not accompanied by a showing of necessity, and a new information is filed charging the same offense, when calculating the speedy trial time requirement of K.S.A. 22-3402a court must include the time elapsed between arraignment and dismissal of the first prosecution together with the time elapsed between arraignment and trial of the second prosecution.

David R. Platt, Asst. County Atty., argued the cause, and Steven L. Opat, County Atty., and Robert T. Stephan, Atty. Gen., were with him on the brief for the appellant.

Charles A. Chartier, of Junction City, argued the cause and was on the brief for the appellee.

SCHROEDER, Chief Justice:

This is an appeal by the State pursuant to K.S.A. 22-3602(b )(1) from an order dismissing an information charging Peter H. Ransom(defendant-appellee) with rape (K.S.A. 21-3502), aggravated battery (K.S.A. 21-3414) and aggravated robbery (K.S.A. 21-3427).At issue is the computation of time for purposes of the appellee's statutory right to speedy trial under K.S.A. 22-3402.

On July 3, 1981, the victim, Ms. B., was attacked, severely beaten, and brutally raped in rural Geary County, Kansas.Twelve days later, on July 15, 1981, the defendant was arrested and charged in district court in case number 81 CR 399 with aggravated kidnapping, rape, aggravated battery and aggravated robbery.Counsel was appointed to represent the defendant at his first appearance on July 17, 1981.Ultimately the defendant retained his own counsel who has represented him throughout these proceedings.

A preliminary hearing was held on August 6, 1981, and the appellee was bound over to stand trial.A week later, on August 13, 1981, the defendant was arraigned and pled not guilty.The defendant remained in confinement until September 10, 1981, at which time he was able to post bond.Trial was set for November 5, 1981.On October 27, 1981, the defendant obtained a continuance to December 3, 1981.On November 30, 1981, the State obtained a continuance to January 18, 1982.On January 14, 1982, the matter was continued by agreement of counsel to March 11, 1982.These continuances were obtained because of difficulties in obtaining essential witnesses.

On March 4, 1982, the State moved for a further continuance, citing difficulty in obtaining two essential witnesses.Both witnesses were doctors who were vital to the chain of forensic evidence in the case, one of whom had conducted the initial examination of the victim and obtained evidence for the "rape kit."Both doctors were planning to be out of the state on the date trial was scheduled; one would be in New York attending a professional meeting and the other would be in Minnesota taking his medical board examinations.At the hearing on the earlier motion for continuance, granted January 14, 1982, the court expressed its concern about the long delay in bringing the defendant to trial and indicated that counsel for both sides should take steps to ensure that essential witnesses would be available for trial scheduled March 11, using compulsory process if necessary.

At the time of the hearing on March 5, 1982, three continuances had been granted and a total of 121 days had elapsed from the arraignment which were chargeable to the State.The State informed the court that approximately 60 days were left of the 180 days allowed by K.S.A. 22-3402 to bring the defendant to trial.The defendant's counsel indicated he had no objection to the requested continuance.Although the court recognized that technical problems in trying the case existed which were not the fault of either party, the court denied the motion to continue because of the number of times the case had previously been continued.The court further determined that should the State elect to dismiss the action no prejudice would occur to the defendant.

The State then orally moved to dismiss the case without prejudice.In granting the motion the court cautioned counsel that the speedy trial issue could be a problem if the case were refiled.

Four days later, on March 9, 1982, the State filed identical charges against the defendant in district courtcase number 82 CR 111.The preliminary hearing was continued at the request of the defendant to March 31, 1982.At that time the appellant waived the preliminary hearing and pled not guilty.Trial was set for May 3, 1982.Due to the unavailability of an essential witness the State moved for a continuance on April 30, 1982.Trial was rescheduled for June 9, 1982.

A hearing was held on June 7, 1982, to consider motions by the State to hold a Jackson v. Denno hearing and to endorse additional witnesses and a motion by the defendant to dismiss for failure to comply with the speedy trial provisions of K.S.A. 22-3402.Finding the defendant's speedy trial motion dispositive the court considered it first.

The court found that 121 days which were chargeable to the State had elapsed from the time of the first arraignment until dismissal of the charges on March 5, 1982, in case number 81 CR 399, and that 90 days had elapsed from the date the charges were filed in case number 82 CR 111.When combined, the time chargeable to the State in these two cases exceeded the 180-day time limit set forth in 22-3402(2).In its memorandum and journal entry of dismissal the trial court specifically rejected the State's proposed finding of fact that the March 5, 1982, dismissal was a matter of necessity, and made the following conclusion:

"The Court finds that 82 CR 111 is a case where no good reason has been shown to extend the legislatively imposed rule of limitations for reason urged by the State.Accommodation of the States witnesses by the prosecutor(thereby delaying the case beyond the 180 day rule plus the statutes' permitted extensions) is not a reason sanctioned by statute or case law to extend the period within which a case may be tried."

The sole issue presented on appeal is whether the trial court properly combined the post-arraignment time chargeable to the State in case number 81 CR 399 with the post-arraignment time in case number 82 CR 111 in calculating the 180-day limit imposed by K.S.A. 22-3402(2) for bringing the defendant to trial.Where, as here, the defendant is released on bond, K.S.A. 22-3402(2) governs the time limits within which the defendant must be brought to trial following arraignment.It provides:

"If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3)."

The right to speedy trial provided by this statute does not attach until the defendant is arraigned.State v. Taylor, 3 Kan.App.2d 316, Syl. p 4, 594 P.2d 262(1979);State v. Smith, 215 Kan. 34, 39, 523 P.2d 691(1974).For this reason it is important to note that the time chargeable to the State in the second case did not commence until March 31, 1982, when the defendant was arraigned, and not on March 9, 1982, when the case was refiled and the defendant arrested, as the trial court erroneously concluded.The time elapsed from the defendant's arraignment to June 7, 1982, when the case was dismissed, totaled 68 days, for an aggregate sum of time chargeable to the State in the two cases of 189 days.

The opposing views as to the effect of the dismissal of original charges and the filing of subsequent identical charges on a defendant's right to speedy trial is set forth in 21A Am.Jur.2d, Criminal Law § 852.

"Under a statute which provides that an accused must be discharged if not brought to trial within a certain period after arrest or indictment, there are two views as to the effect of the dismissal of the original indictment or information and the bringing of a subsequent indictment or information.One is that the statutory time is to be computed from the time of the later indictment or information, the theory being, broadly, that the original proceeding became a nullity on its dismissal and that the new accusatory pleading represents the institution of a new and independent proceeding to which the statute can be applied without reference to anything which may have previously occurred.The second theory applied in such circumstances is that to permit the state to deprive an accused of the right to a discharge by the simple expedient of nolle prossing the original indictment and procuring a new indictment for the same offense is, in effect, to rewrite the statute, which, especially since statutes of the kind in question were passed to implement the constitutional guaranty of a speedy trial, ought rather to be given such a construction by the courts as to secure the ends sought by the legislature."

See also22A C.J.S., Criminal Law § 468; Annot., 30 A.L.R.2d 462.

Where the State fails to bring the accused to trial within the time limits fixed by the statute, and where the delay is not due to the application or fault of the defendant or to extensions of time as provided by K.S.A. 22-3402(3), Kansas appellate courts have not hesitated to enforce the legislative mandate and order the defendant discharged.State v. Warren, 224 Kan. 454, 457, 580 P.2d 1336(1978);State v. Cox, 215 Kan. 803, 528 P.2d 1226(1974);State v. Sanders, 209 Kan. 231, 495 P.2d 1023(1972).However, delays which are the result of the application or the fault of the defendant are not to be counted in computing the statutory period.It is the State's obligation, not the accused's, to provide...